Freer v Police - [2025] NZHC 321

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2025-488-000008 [2025] NZHC 321

BETWEEN
SOUL THOMAS FREER

Appellant

AND

NEW ZEALAND POLICE and DEPARTMENT OF CORRECTIONS

Defendant

Hearing: 26 February 2025

Appearances:

K Russell for Appellant (via VMR) A Goodwin for Crown

Judgment:

27 February 2025

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 27 February 2025 at 3:00 pm.

……………………………… Registrar/Deputy Registrar

Solicitors:
Marsden Woods Inskip Smith, Whangārei

FREER v POLICE and DEPARTMENT OF CORRECTIONS [2025] NZHC 321 [27 February 2025]

[1] On 17 December 2024, Judge D J McDonald in the Whangārei District Court sentenced Mr Soul Freer for 16 charges following entering guilty pleas.1 These encompassed several theft, driving-related, resisting police, and drugs/utensil possession charges relating to offending within a six month period.

[2] Mr Freer was also re-sentenced on seven charges for which he had previously been sentenced to 18 months’ intensive supervision. This sentence was cancelled and substituted with a cumulative sentence of two months’ imprisonment.

[3] For all the offending, the Judge sentenced Mr Freer to 27 months’ imprisonment. Mr Freer appeals. He takes no issue with the substitution. But he says that the sentence imposed for the 16 fresh charges was manifestly excessive in that the starting point was too high; the Judge gave insufficient discounts for remorse and rehabilitation; and the overall sentence does not sufficiently take into account totality. Mr Freer also says that the Judge erred in the construction of the end sentence by running all Mr Freer’s theft charges cumulatively.

Approach on appeal

[4] This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed, and that a different sentence should be substituted.2 The overall question on appeal is whether the sentence was manifestly excessive or the sentence is wrong in principle.3

[5] The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. Nor will it artificially tailor a sentence to bring it within the range where home detention is available.4

[6] The focus is on the end result rather than the process by which the sentence was reached.5 In exceptional cases, it may nonetheless be necessary to correct a

1      Police and Department of Corrections v Freer [2024] NZDC 31193.
2      Criminal Procedure Act 2011, s 250(2).
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
4      R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [35] citing R v Edwards [2006] 3 NZLR 180 (CA) at [24].
5      Tutakangahau v R, above n 3, at [36].

sentence that is within range (for example, where there has been an arithmetical error).6

The offending

[7]The 16 latest charges on which Mr Freer pleaded guilty are as follows:

(a)theft (under $500) (x 4);7

(b) theft ($500–$1000);8

(c)theft (over $1000);9

(d)careless driving;10

(e)driving while disqualified (x 2);11

(f)unlawfully gets into a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Freer v Police

Details

AGLC: Freer v Police [2025] NZHC 321
Case: [2025] NZHC 321
Decision Date: 27 February 2025

CaseChat Overview and Summary

Soul Thomas Freer appeals against the 27-month imprisonment sentence imposed by Judge D J McDonald in the Whangārei District Court for 16 charges, including theft, driving-related offenses, resisting police, and drug possession. The appeal focuses on the starting point for the lead theft charge, the uplifts for the remaining theft charges, and the discount for remorse and rehabilitation, as well as the apportionment of the cumulative versus concurrent sentences. Freer argues that the starting point for the lead theft charge was too high, the uplifts for the remaining theft charges were excessive, the Judge did not adequately discount for remorse and rehabilitation, and the Judge erred in running the theft charges cumulatively.

The Court examines the starting point for the lead theft charge, which was set at 12 months. The Court finds that this starting point was appropriate, given the pre-meditated and subterfuge nature of the offense. Regarding the uplift for the remaining theft charges, the Court agrees that the uplift of eight months was not excessive, considering the ongoing pattern of offending. As for the discounts for remorse and rehabilitation, the Court upholds the Judge’s decision not to grant such discounts, citing Freer's history of non-compliance with rehabilitation efforts and multiple misconduct reports while on remand. Lastly, while the Court acknowledges that running the theft charges cumulatively might not have been appropriate, it finds no error in the end sentence of 27 months, as the overall objectives of totality were met. Therefore, the Court dismisses the appeal.

The Court’s decision concludes that the sentence imposed by the District Court was not manifestly excessive and adheres to accepted sentencing principles. The appeal is dismissed, and the original sentence stands.

Orders